Attorney E-Newsletter

May 2008

This newsletter is intended to inform and educate members of the legal profession
regarding activities and initiatives of the Disciplinary Board of the Supreme
Court of Pennsylvania. Content will be pertinent to the conduct of lawyers
and the legal profession in the Commonwealth. Article focus will be on changes
in the Rules of Professional Conduct, activities of the Disciplinary Board,
Ethics Education, and advice from members of the staff of the Disciplinary
Board.

Annual Report 2007

The Disciplinary Board has issued its Annual Report for 2007-2008. It is
posted at padb.us here.
A few highlights:

As of December 31, 2007, there were 59,453 attorneys on active status
in Pennsylvania.

25 cases were brought to conclusion using the Discipline on Consent process
in 2007. 4 joint petitions for discipline on consent were denied.

Three rule changes were adopted by the Supreme Court:

Pa.R.D.E. 219(d) was amended by Order dated April 10, 2007, effective
April 28, 2007 to require that attorneys provide their current residence
and office addresses on their attorney annual fee forms; however,
they may also provide a preferred mailing address different from
those addresses. Attorneys are also required to select one of the
three addresses for public access through the Board's website or
upon written or oral request.

Pa.R.D.E. 402 was amended by Order dated May 23, 2007, effective
June 9, 2007, to repeal Rule 402(c)(4) and to add new Rule 402(k) which
would provide that a formal proceeding that becomes open to the public
will subsequently be closed if it results in the imposition of private
discipline or dismissal.

Pa.R.D.E.102 was amended by Order dated June 26, 2007, effective
July 14, 2007 to lower the criteria by which an experienced hearing
committee member would be eligible for promotion to a senior hearing
committee member.

The circulation of this newsletter increased by nearly 10,000 in 2007.

Disciplinary Board Modifies Organizational Rules

The Disciplinary Board has published a set of modifications to the Rules
of Organization and Procedure of The Disciplinary Board, the organizational
rules that govern much of the operations of the Disciplinary Board. The changes
were published at 38
Pa.B. 1812 (April 19, 2008). Most of these changes are not new, but bring
the organizational rules into conformity with various changes to the Rules
of Disciplinary Enforcement which have been adopted over the past few
years.

The changes include:

Updates to the definitions of different types of Hearing Committee members;

The new address of the District 4 (Pittsburgh) office;

Changes to the rules regarding employment of inactive, suspended, or
disbarred former attorneys;

Revisions to the rules regarding access to information on disciplinary
proceedings and restoration of confidentiality; and

Amendments relating to information on the annual registration statement.

Linked Licenses

By now we hope everyone understands that it is very
serious business to practice law while one's license is suspended,
but a York County attorney found out that the same principle applies to
his other license as well. Stanley
Silver was convicted of driving while his driver's license was suspended.1 Although
a hearing committee recommended he receive public censure, the Disciplinary
Board disagreed and recommended a six-month suspension, which is what the
Supreme Court did. In driving, as in law, suspended means suspended.2

New New Hampshire Lawyer's Plan to Clip Salons is Foiled

Newly admitted New Hampshire lawyer Daniel Hynes had an idea gel for starting
his legal career with a bang. Sensing a blowout, he burned a lot of toner
writing a crop of letters to hair salons all around the state - 19 of them,
in fact - complaining under color of civil rights laws of his dis-tress that
the salons were practicing discriminatory pricing practices by charging women
more than men, rather than locking prices in to the amount of time required
for the cut.3 Glossing
over the fact that he as a man benefited from these practices, he threatened
litigation, but conditioned that the matter could be straightened out on
his part by payment, to him, of $1000.00.

Little did he know he had stirred up a beehive of trouble. One salon, after
taking time to mullet over, called his bluff by extension of a trimmed-back
settlement of $500.00, but when Hynes appeared at the salon owner's husband's
office to pick up the check, the fuzz were layers in wait, and arrested him
for theft by extortion for his crime ringlet.

In March, a jury which heard the highlights of the tale convicted Hynes.
He plans to appeal, asserting a First Amendment right to petition the courts,
but for now Hynes faces penalties up to a year in jail and a fine of $2,000.00.
In addition, Hynes may be subject to disciplinary action for the conviction,
which could cut short his legal career. He can only hope it isn't permanent.
The Concord Monitor has the story here.

Threatening Criminal Prosecution

On the subject of overzealous demand letters, subscriber Steve Leventhal
recalls being taught in law school that it is unethical to threaten criminal
prosecution in order to gain an advantage in a civil case, and inquires whether
this provision still applies.

Those of us who went to law school and practiced in the 1980's and earlier
may recall this prohibition. It was contained in Disciplinary Rule 7-105(A)
of the Code of Professional Responsibility, which was superseded by the Rules
of Professional Conduct in 1988. DR 7-105(A) read, "A lawyer shall not
present, participate in presenting, or threaten to present criminal charges
solely to obtain an advantage in a civil matter.:"

Prosecutions under DR 7-105(A) were very rare. Only one Disciplinary Board
report ever cited it -- In Re Anonymous No. 65 D.B. 85, 44 Pa. D.& C.3d
177 (1987), in which it was one of many violations cited in the disbarment
of a particularly obdurate and vexatious lawyer. Violations were seldom charged
because it was difficult to prove that the threat was "solely"
for purposes of advantage in a civil case. In addition, the rule was not
charged if the threat of criminal prosecution had any possible merit.

For these reasons, the drafters of the ABA Model Code of Professional Responsibility
chose not to carry any comparable provision over into the new Code, and when
Pennsylvania adopted a version of the Model Code effective April 1, 1988,
the prohibition disappeared from Pennsylvania law as well.

This is not to say that an unfounded threat of criminal prosecution is ethically
justifiable. Commentators have noted that such conduct is still addressed
by current Rules Professional Conduct, including RPC
3.1, which prohibits the assertion of frivolous claims, RPC
4.1, which prohibits false statements to third parties, and RPC
4.4(a), which forbids a lawyer representing a client to use "means
that have no substantial purpose other than to embarrass, delay, or burden
a third person."

Request In Strictest Confidence For Urgent Business Relationship Totally
Legitimate But Very Confidential.

The Disciplinary Board has been notified that attorneys in Georgia and New
Jersey have been targeted by an apparent attempted 4-1-9
(Nigerian) scam. Some attorneys have received an email claiming to be
from a person who is out of the country and is seeking representation from
an attorney. The attorneys receive a check from Canada via UPS in an amount
from $150,000 to $298,000. They are instructed to wire funds to China, Korea,
Taiwan or Japan for the amount of the item minus an attorney's retainer fee.
The astute may reasonably doubt the probability that the check forwarded
will be good. Be warned and beware.

Gotta Tip?

2 The
editorial staff has been threatened with suspension of our artistic license.
That is different . . we think.

3The
things you learn doing this. We learned that in finance, a "haircut"
is "a valuation formula used by broker-dealers in computing net
capital positions. A dealer's haircut is an estimate of potential losses,
taking into account credit risk, market risk, time to maturity, and other
factors. In lending, difference between the amount advanced by a lender
and the market value of collateral securing the loan. For example, if
a lender makes a loan equal to 90% of the dollar value of marketable
securities, the difference (10%) is the haircut. Also called haircut
financing."4

4 The Car
Talk guys also have an alternate definition of "haircut," which
is better not specified here.